Doss v. State

• Decision Date: 05 May 1913
• Citation: 104 Miss. 598,61 So. 690
• Court: Mississippi Supreme Court
• Parties: ROMAN DOSS v. STATE

61 So. 690

104 Miss. 598

ROMAN DOSS v. STATE

Supreme Court of Mississippi

May 5, 1913

March 1913

APPEAL from the circuit court of Chickasaw county, HON. H. K. MAHAN Judge.

Roman Doss was convicted of manslaughter and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Geo. T Mitchell, for appellant.

The second suggestion or error, I submit, is fatal. It will be noted that this appellant was in jail and not on bond. During the progress of the trial he was in the custody of the sheriff, and during the testimony of Tom Lipsey, the most material witness for the state, and while he was absent from the court room in the custody of the sheriff, this witness Lipsey, was permitted to detail to the jury a most important part of his testimony. Two of the most material questions and answers were asked this witness and delivered by him during the absence of the defendant from the court room, to wit:

"Q. What was he doing to him after he shot him the last time, after he whirled, if anything? A. He wasn't doint nothing.

"Q. How many times, if you know, did Roman shoot him after he fell? A. I don't know how many times he shot. It was so fast that I naturally don't know."

Now it cannot be successfully argued that that testimony was not material. It was the most important testimony delivered by this witness, and this court has repeatedly held that a defendant not on bond not only has the right to be, but he must be present at every step in the trial of his case, and the fact that he was inadvertently absent, or that the jury was instructed not to consider the testimony delivered in his absence, or that the judge had the witness to repeat his testimony to the jury after defendant had returned into court does not cure the error. Defendant's counsel excepted at the time, and the court should then and there have at least offered to defendant a mistrial in the case. Booker v. State, 81 Miss. 391; Stanley v. State, 53 So. 497; McClendon v. State, 96 Miss. 250; Sadler v. State, 53 So. 783.

This court has held it to be fatal error to proceed with the impaneling of a jury in the temporary absence of accused on trial for murder. Warfield v. State, 96 Miss. 170.

Frank Johnston, assistant attorney-general, for appellee.

I concede the rule of law as announced by this honorable court in capital felonies where the defendant is in custody of the law and not out on bail, that he must be present in person during the whole progress of his trial, and I do not controvert the soundness and correctness of this principle of criminal procedure, but the question which I respectfully submit to the court and which I deem it proper to submit for the consideration of the court without an extensive argument is, whether or not in this special case, the rule should be applied. I presume from the record that this occurrence was the result of an inadvertence by the court. Mr. Knox, the district attorney, says that the testimony was given while he was temporarily absent from the court room, having gone to the witness room to get some clothing which was to be introduced in evidence in the case. The questions and answers occurring during defendant's absence are correctly stated by counsel in their brief. Immediately upon the objection made by defendant's counsel, the court instructed the jury not to regard any of the testiony, either the questions or the answers of the witness given in the absence of the defendant and then in the presence of the defendant, had the witness to repeat the answers that he had given.

It thus appears, as a fact, that the defendant's rights were not prejudiced by this technical irregularity. It is therefore submitted to the court whether, in a case where the record shows...